The California Supreme Court agreed with the Court of Appeal, and upheld the admissibility of the reports of non-MPN physicians in support of an applicant’s claim in the controversial case of Elayne Valdez v WCAB, and Warehouse Demo Services.

After Elayne Valdez filed a claim for industrial injury, the employer admitted her claim to most of the alleged body parts injured and she was sent for medical treatment to the employer’s MPN, where she was seen by Dr. Nagamoto, who treated her from approximately October 9, 2009 to October 31, 2009. Applicant then began treating with Dr. Nario, a non-MPN physician, upon referral from her attorney.

The WCAB in a split en banc decision ruled that non MPN physician reports are not admissible when the employer has properly complied with MPN regulations. The WCAB reasoned that Labor Code 4616.6 provides: “No additional examinations shall be ordered by the appeals board and no other reports shall be admissible to resolve any controversy arising out of this article” and thus precludes the admissibility of non-MPN medical reports with respect to disputed treatment and diagnosis issues, i.e., “any controversy arising out of this article.”

The Court of Appeal reversed and remanded in an unpublished opinion. In ruling that non MPN reports are indeed admissible, the Court of Appeal reasoned that “It does not makes sense, however, to construe section 4616.6 as a general rule of exclusion, barring any use of medical reports other than those generated by MPN physicians. Section 4616.6 states nothing of the sort. If the Legislature intended to exclude all non-MPN medical reports, the Legislature could have said so; it did not.”

Before the decision by the California Supreme Court, recently enacted S.B. 863 partially addressed this outcome. Effective 1/1/2013 LC 4605 provides that “Any report prepared by consulting or attending physicians pursuant to this section shall not be the sole basis of an award of compensation. A qualified medical evaluator or authorized treating physician shall address any report procured pursuant to this section and shall indicate whether he or she agrees or disagrees with the findings or opinions stated in the report, and shall identify the bases for this opinion.”

The California Supreme Court decision is now the final word on this controversy. It concluded that the “Court of Appeal sensibly limited the scope of section 4616.6 to matters arising during the independent medical review process set out in article 2.3. Reading section 4616.6 broadly to apply to all compensation proceedings is a manifest distortion. As the Court of Appeal noted, the comprehensive medical evaluation process set out in section 4060 et seq. for the purpose of resolving disputes over compensability does not limit the admissibility of medical reports. Section 4062.3, subdivision (a) permits any party to provide the evaluator with ‘[m]edical and nonmedical records relevant to determination of the medical issue.’ Under section 4064, subdivision (d), ‘no party is prohibited from obtaining any medical evaluation or consultation at the party’s own expense,’ and ‘[a]ll comprehensive medical evaluations obtained by any party shall be admissible in any proceeding before the appeals board,’ except as provided in specified statutes. The Board is, in general, broadly authorized to consider ‘[r]eports of attending or examining physicians.’ (§ 5703, subd. (a).) These provisions do not suggest an overarching legislative intent to limit the Board’s consideration of medical evidence.”

It remains unclear how much of a Pandora’s box this case has opened. In 2004, as a result of SB 899, medical disputes moved to a resolution system requiring the selection of an evaluator off of a panel of three names provided by the DWC. Prior to the panel QME system, employers complained about the costs of duplicative, redundant and unnecessary medical legal evaluations which could easily reach over $10,000 per claim. The panel QME system reduced the number of medical legal evaluations and some of the gamesmanship that took place in the selection of evaluators.

A literal parsing of the Supreme Court’s language in Valdez may have opened the door for the return of the old – select who you want – QME evaluation system, or indeed even the use of non QMEs to evaluate a case whenever an attorney deems it expedient to do so. It is not clear if one side, or if both sides may do so, and it is unclear if done by an applicant, would the employer be required to pay for the evaluation as a medical legal charge even though the employer need not pay for out of network treatment.

It is unlikely that the applicant attorneys will not make as much use of the Valdez decision as possible.